COMPETITION POLICY IN THE DIGITAL MARKETS (REFEREED)

  • Posted on: 06 déc., 2020
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Journal of Bank and Finance Law – Volume: 9/Issue 35/Year: 2020, p. 833-864

Dr. Assoc. Oğuzkan GÜZEL*

Legal Intern Başak İrem COŞKUN**

*Oğuzkan Güzel is the founder of Güzel Law Office. He is a graduate of Ankara University Faculty of Law-1994, and he has EU Competition Law Master-2001 and Public Law (Administrative Law) 2007 PhD degrees from the same university. He holds an LL.M degree from University of Minnesota, USA Law, 2004. He has more than 20 years of experience in competition and regulation, including 10 years as an expert in the Competition Authority.

** Başak İrem Coşkun is Ankara Bar Association Intern Advocate. He graduated from Yeditepe University Faculty of Law-2019. He continues his academic career in Ankara University European Union Law Master’s Program. As of the date of the article, she continues her legal internship at Güzel Law Office.

 

ABSTRACT

The reflection of the developing technology on the markets requires an innovative perspective in the legal order. As a matter of fact, traditional Competition Law practices have not been able to respond to the problems of the digital markets based on the developing technology in the digital age we live in. Thus, the market has been shared by several players as a result of late sector research.

In this regard, in order to break the monopoly structure in the sector and terminate the barriers to market entry, sector analysis are carried out by the competition authorities, and extensive investigations are carried out for very powerful undertakings such as Google, Facebook and Amazon. In the related investigations, not only administrative fines are imposed on the undertakings that abuse the dominant position, in addition, it is aimed to re-establish and maintain the intra-market equilibrium by means of remedies in order to end the anti-competitive behaviour.

As a result, it is aimed to bring digital sectors, which are new business models, to a competitive level in line with the evaluation of the established Competition Law principles with a more flexible and innovative perspective by taking into consideration the unique characteristics of the digital sector with Competition Law practices, even if it is late.

Keywords:  Competition, Digital, Google, Facebook, Amazon

  1. Introduction

Technological developments that gained acceleration rapidly during the last ten decades have encouraged the transition to digital markets over the Internet in all sectors. Indeed, COVID-19 Pandemic, which has influenced all over the world, shows that the shift of classical trade into digital commerce will increase even much more. The digitization of a very serious majority of sectors required a redrawing of the boundaries applied in the traditional sector system. In this regard, it is inevitable that the digitalized economy will affect many branches of law, especially the practices of The Competition Law, which is seen as the constitution of the economy. Thus, it is seen that an innovative perspective has been formed in terms of the application of Competition Law and that the sectors are evaluated from a new perspective. It is understood that the basic competition law concepts of the analysis are based on the industry’s unique dynamics, especially in the decisions made by the competition authorities of developed countries regarding the digital sectors. Accordingly, the European Commission (“Commission“) and the competition authorities of countries such as Germany, France and the United Kingdom carry out various studies on the digital sector in order to respond to the new problems arising. Simultaneously with these studies, sector research has been started[1] in Turkey by the Competition Authority (“Board“) in order to determine the limits of the rules to be applied to digital platforms and renew competition policies in the digitalized world. In this regard, it has been announced that new job descriptions related to digital economy issues were determined.[2] Furthermore, the Institution has made important decisions about digital platforms such as the decision of Google, Sahibinden.com, Yemek Sepeti, Hepsiburada etc.

In the article, which will examine the innovations and changes that the digital sector has created in the Competition Law system,  e-Commerce concepts that serve within the digital sector and digital sector will be explained first and then how the industry’s unique dynamics are interpreted in terms of competition law concepts will be examined. In light of these examinations, investigations and decisions made by the US, EU and Turkish competition authorities regarding competition violations on the digital sector will be included and our article will be concluded with our suggestions on how competition law and regulation should be made in the digital sector by conducting a general assessment of the sector by making a general assessment of the sector.

  1. The Unique Dynamics of Digital Sector

Internet entrepreneurship, which has gained significant momentum especially in the last decade both in our country and in the world, has created a digital sector that is an alternative to traditional sectors. The digital sector is a technology-based innovative sector and the markets within it “are different, such that they deserve—indeed, demand—unique treatment under the antitrust laws.” [3] As a matter of fact, digital markets have their own dynamics unlike traditional markets[4] and these dynamics should be taken into consideration by competition authorities when analysing the market. Accordingly, as Gürkaynak points out “the board must examine the specific dynamics of digital markets while assessing the competitive or anti-competitive effects of relevant cases.” [5]

Activities in this sector are carried out through digital platforms and trade through these platforms is expressed as E-Commerce. In this regard, in order to understand the digital sector, it is necessary to understand how the digital platforms, E-Commerce system and Competition Law concepts of the sector are integrated into these systems.

E-Commerce System, which is the heart of the digital sector, “encompasses digitally enabled transactions in trade in goods and services which can be either digitally or physically delivered involving consumers, firms and governments”[6] and services such as distribution, marketing, sales etc. are carried out through digital platforms. The definition of the E-Commerce system, which has gained a place in the Turkish market in a very short time, was also included in the D-Market Decision of the Competition Authority[7] and is expressed as “a new kind of shopping environment and virtual store applications on digital platforms that have emerged with developments in web technologies and consumers electronically over the Internet.”

The digital platform, frequently mentioned in the definition of E-Commerce, has been described by the Council of Europe as “an undertaking operating in two (or multi)-sided markets, which uses the Internet to enable interactions between two or more distinct but interdependent groups of users so as to generate value for at least one of the groups”[8] by the Council of Europe. In this regard, marketplaces such as Amazon, E-Bay; App stores like Apple; Social networking sites like Facebook, Instagram and search engines like Google, Yahoo create a digital base for various E-Commerce services.

One of the characteristics of the digital platform, often mentioned in investigations, is the “indirect network effect” and this effect is due to the market structure being “multilateral”, another characteristic feature in the industry. The indirect network effect is related to the dependency relationship between the demands of indirect effect customer groups on digital platforms and “refers to the effect that one user of a good or service has on the value of that product to other existing or potential users.[9] For example, the only reason people choose to use Facebook across social networking platforms may even be because it’s used by friends. So, “the value of using digital platforms directly depends on the number of users.”[10]

The multilateral Market structure, which causes indirect network impact, is related to the groups of players in the Market. Unlike traditional one-sided Markets, the service provided through digital platforms is intended for multiple customer groups or multiple demand sources.[11] In other words, there are users on one side of the platform who need goods or services while there is a content provider/retailer that delivers goods or services through the platform on the other side. Therefore, the tendencies of multiple decision units should be evaluated at the point of determining the product/geography boundaries that may be substitutions.[12]

The factor that confronts the investigations of the competition authorities is the principle of working in the sector as well as the dynamics mentioned in the sector. Digital platforms have new business models with algorithms designed to collect and process data, and they work with decisions based on this data.[13] In this respect, especially the vast majority of data gathered by a few players required the digital sector to be handled within the framework of competition law.

  1. US and EU Competition Violations Decisions in the Digital Sector

The analysis of digital sectors in terms of competitive law began with the attention that the dominant platforms such as Google, Amazon, Facebook, Apple, which have very high market shares, pose a barrier to entry into the market, and those who succeeded in entering the market were eventually bought by these powerful companies and the companies that are already in the dominant position became stronger. For example, more than seventy-five percent of U.S. online users often shop over Amazon.[14] Apple and Google, on the other hand, control more than 95% of all mobile app spending by consumers in the United States. Indeed, Facebook is the leading social networking site, and Google dominates the search engine market with the highest share.[15] In this respect, it was inevitable that the platforms mentioned would be subjected to competition authority’s scrutiny.

  • Facebook Decisions
    • S. Competition Authorities and Court Decisions

Facebook, North America’s most popular social media platform[16], serves with the “free to use” model, which is widely used by social media and online search engines.[17] At this point, the factor that turns the eyes of the world competition authorities to Facebook is the provision of this company’s revenues from targeted advertising and user data.[18]  In other words, Facebook does not take its power from the fees charged to users but instead from users’ personal data. However, while this power caused Facebook to dominate the market, it has also led Facebook to prosecute lawsuits in several states in violation of the Sherman  Act (American Competition Act), which prohibits “to acquire monopoly power by engaging in conduct outside the bounds of ‘competition on the merits.” [19] For example, the famous Cambridge Analytica investigation by the Federal Trade Commission in 2019 resulted in the highest penalty in history for competition violations, and Facebook was sentenced to $5 billion in fines for cheating on its users despite their right to keep their personal data confidential.[20]

The main reason for the investigations against Facebook, particularly Cambridge Analytica, is that “to monitor and record consumers’ digital activity reflects Facebook’s ability to extract monopoly rents in the social media market. [21]  As a matter of fact, the factor that distinguishes Facebook from its competitors in the period it emerged was the company’s commitment to confidentiality[22] and the promises  “not to track and monitor consumers’ digital footprints”[23] Thus, Facebook has “foreclosed competition in a contested market” [24]  thanks to its strategy that it applied during the period of anxiety in privacy.  In the end, as its power in the market grew, it changed its privacy policy, and, as seen in the Cambridge Analytica case, faced severe sanctions for the way the data was shared and remained.

  • The Decision of German Federal Cartel Office

Germany, which has done serious studies in the field of digitalization in terms of addressing the economy within the framework of competition law, is remarkable in terms of the EU. In fact, Germany is one of the first countries to note that new business models and services on the digital platform market will require some changes in the field of competition law, and in this respect, it has revised the competition law to adopt the new features of the digital economy from 2017 onwards. [25]

The Decision of the German Competition Authority Bundeskartellamt (“Federal Cartel Office“) dated February 6 of 2019 on Facebook[26] is a crucial decision in terms of addressing data dominance in digital sectors from a competition law perspective. In the relevant decision of the Federal Cartel Office, by examining the unique dynamics of Facebook, it is stated that in addition to the private users and advertisers, which is mentioned to have an indirect network effect,  Facebook added further market sides to its core product, publishers and developers, who are creating also an indirect effect between them and users.[27] These new market players, who were included on the market by Facebook, have aimed to increase the recognition of their sites and apps by taking advantage of the traffic flow within the platform. At this point, it was pointed out in the decision that Facebook’s financial system is ad-based and that the indirect network effect among the players in the market constitutes Facebook’s revenues through targeted advertising. In this regard, since “an advertising funded social network generally needs to process a large amount of personal data”[28], besides the Competition Law principles, also the principle of Personal Data Law within the framework of the European General Data Protection Regulation are also discussed by the Federal Cartel Office.[29]

In this context, the Federal Cartel Office, evaluating the dominant position assessment, decided that Facebook is the dominant company in the national market for social networks, by examining Facebook’s share in the Market, the ability of users to leave or change the market, the power of Facebook to access personal data, and thus, whether there is an entry barrier in the market  and whether Facebook had become a Monopoly in the relevant market.[30] It is stated that Facebook, which has 95% of its market share in terms of user-based market share[31], “has excellent access to competitively relevant data” and that “Facebook’s comprehensive data sources are highly relevant for competition as a social network is driven by such personal.”[32] Indeed, these specific data facilitate highly personalised advertising.[33] In line with these statements, Facebook, which is in a dominant position and prevents player entry into the market by creating a barrier to entry to the market through its data power, has caused existing players to withdraw from the market and prohibited “using and actually implementing Facebook’s data policy, which allows Facebook to collect user and device-related data from sources outside of Facebook and to merge it with data collected on Facebook, constitutes an abuse of a dominant position on the social network market” by the decision of Federal Cartel Office [34] Because, in order to use Facebook, Facebook users must declare that they accept the terms of service that require Facebook to use the data on sites other than its website or smartphone applications and associate this data with the Facebook account of the user. And This enables a widely used social network platform such as Facebook to combine data by collecting data from sites and applications under its control such as Instagram and from and from third-party sites that integrate the Facebook Business Tool feature or Facebook Analytics service on their own sites or are included in the Facebook Audience Network, even if they are not under their control. As a result, Facebook has the opportunity to obtain a unique database for each user, due to the service conditions that are accepted by its users actually without realizing it. At this point, the Federal Cartel Office found the structure of Facebook that allows collecting and combining data against competition law and prohibited this behaviour. As a matter of fact, the German Competition Authority has used personal data law norms to determine whether Facebook’s terms of service cause a competition violation and has evaluated Facebook’s combination of data collected from its own applications and websites with the data collected from third-party websites through plug-ins placed on sites without the knowledge of users, as an abuse of its dominant position in the social network market by applying exploitative business conditions.

Although no monetary penalty is imposed in the decision, it is stated in the decision that both the behaviour of these companies belonging to the Facebook Group and the terms of service/ data processing conditions offered to its users in Germany must be changed in order to continue to be used in the German Market.[35] In this respect , with regard to the services offered on “facebook.com” and “facebook.de”, the terms of any contract including Facebook Terms of Use, Data Guidelines, Cookie Guidelines allowing Facebook collecting, using and combining user data from different sources during the use of third-party website uses or other social platforms (WhatsApp, Instagram, etc.) which Facebook Users residing in Germany are obliged to accept as stated by the Federal Cartel Office are prohibited. [36]

This decision of the Federal Cartel Office has been highly criticized, stating that the basis of the actions subject to the decision is the personal data law norms rather than the competition law norms, that is, the Federal Cartel Office exceeds the jurisdiction as a regulatory agency. Thus, the relevant decision was taken by Facebook to the Düsseldorf State Supreme Court (Oberlandesgericht Düsseldorf) (“OLG”) and suspension of execution was requested. At this point, the issue that OLG emphasizes, which controls the compliance with the law of the Federal Cartel Office decision, is whether the violation of personal data law can directly lead to a violation of competition. OLG, which considers data law as a kind of new type of violation in the context of competition law, stated that there were doubts that violation of personal data law would constitute a violation in terms of competition law, and decided to suspend the execution on the grounds that there was no damage to the users, especially in terms of concrete incident.[37]

The Federal Cartel Office, which brought the decision of OLG for the suspension of execution before the German Federal Court (Bundesgerichtshof), resists its claim that digital platforms have gained significant power through the use of personal data and that the abuse of this power is creating a barrier to market entry and violating the competition law. It should be noted that, the Facebook investigation is just a beginning for the Federal Cartel Office, which takes the place of the digital sector in the legal order with great seriousness, and major technology companies known as GAFA, especially Amazon will also be audited by competition law. Indeed, the German Federal Court, which announced its first opinion on this point, made a revolutionary decision and paved the way for the approach of digital platforms with a new perspective in terms of competition law.[38] The Federal Court ruled in favour of the German Cartel Office and abolished the OLG’s decision to suspend the execution, focusing on consumer preference and the sovereignty of users to decide on their behalf, and stated that there is no doubt in its decision that Facebook is dominant and abuses its dominant position.[39] It is because, when a user logs on Facebook.com, s/h has to answer “yes” to every question asked by Facebook in order to use this social network. Facebook describes this as “a personalized user experiment”, which means that Facebook collects and aggregates data from Instagram, WhatsApp and third-party sites. No monetary value is paid for this, but “You pay for that – it is a bit like tying. You do not pay with money, but with consent to the use and processing of your data. You are forced to consume a service that goes beyond what you wanted”, Podszun has expressed this with a simple but very good example: “as if you went for a glass of wine to a bar and find out that you automatically get a snack with it. Sure, that’s nice to have, but you pay for it even if you do not touch it.”[40]

In the decision, this situation was expressed as the extension / extension of the service (aufgedrängte Leistungserweiterung) imposed on users:

“(…) as in the case of a compulsory tying of products or services, anti-competitive effects may arise both in the vertical relationship and in the horizontal relationship if the imposed extension of the scope of services proves to be an exploitation of customers or an obstacle to competition (…). The anti-competitive nature of the imposed extension of services results here both from the exploitation of customers and from its anticompetitive effect.” [41]

In summary, the German Federal Court held that the problem in this case was an abuse of the dominant position of Facebook’s terms of use, on the ground that Facebook’s terms of use did not give users a choice of how to consolidate data, rather than whether Facebook violated the data protection provisions of the GDPR. Thus, this decision has taken its place as an important decision in terms of both considering the new dynamics of Competition Law principles and including the principles of Personal Data Law by stating that the relevant platforms operate on the basis of personal data. It should be noted that as of the date of the article, the case continues to be heard in OLG, but Facebook has to revise the terms of use and terms of service in the German market in line with the decision of the Federal Cartel Office.

  • GOOGLE Decisions

Data-driven network effects and the structure of data control that constitute strain of access to the market are very remarkable in terms of competition law on digital platforms and serious work is carried out by the competition authorities. For example, the European Commission, which is in preparation for regulation on digital services, has started a study with a budget of 600,000 Euros on the market power of digital platforms with significant network effects acting as gatekeepers. The study is expected to involve robust data, insights and analyses on dominant digital platforms and competitive inequalities among newcomers in an economy characterized by “winner take most”.[42]

Indeed, “although other factors as multihoming, platform differentiation, and congestion might facilitate competition between platforms, particularly large indirect network effects can lead to a natural monopoly situation with only one dominant platform, which however also can be an efficient solution.”[43] As stated in the European Commission’s terms of reference and noted by Geradin in his Article “critical amount of users or device data generates an essentially incontestable competitive advantage that may lead to the situation where once an incumbent is established, the ability to scale up or enter the market may be extremely difficult for any competitor”[44] In regard to search engines and social networks such a market position might be additionally protected by high entry barriers, especially through the large amount of data collected in the past, which allows for a higher quality of the services of the incumbent platforms.[45] For example, a multi-user platform like “Google can use the search data of users to improve its search engine algorithms; new entrants to the market do not have this advantage”[46] Even if new entrants manage to enter the market, they are likely to be acquired by dominant platforms, unable to withstand competitive pressures for long periods of time.[47] Indeed, Google has acquired 212 business entities since its founding in 1998 and the value of these acquisitions exceeds $17 billion.[48]

It should be noted that the current situation, which has raised serious concerns in terms of competition authorities, has faced many investigations into competition violations, with social platforms such as Facebook, Amazon, and Google search engine, a serious data accumulation. Indeed, since 2010, the European Commission has conducted three separate investigations against Google in violation of European competition law. [49]

The investigation numbered AT.39740 carried out by the Commission on Google / Comparative Shopping Services was initiated in 2010 and the investigation concluded in 2017 after a lengthy review process. The Commission, stating that Google provides an important place only for its Comparative Shopping Services by putting its competitor services behind[50], fined Google €2.42 billion in the relevant Google Shopping  2017 decision[51]; for abusing its market dominance as a search engine by giving an illegal advantage to another Google product, its Comparative Shopping Services.

The issue the Commission emphases on in the investigation is that Google acts in a way that goes against equality of treatment. Indeed, thanks to the illegal advantage afforded to the Comparative Shopping Service, these services are at the top of the search results, thus providing a serious traffic flow compared to rival shopping services. As a result, the decision orders Google to comply with the simple principle of giving equal treatment to rival comparison shopping services by stating that dominant companies have a special responsibility not to abuse their powerful market position by restricting competition. [52]

The second investigation carried out by the Commission against Google is the Google Android 2018 investigation numbered AT. 40099, which was initiated in 2015 upon the complaint of a commercial group named Fairsearch, in which Microsoft, Nokia and Oracle were members in the relevant period, resulting in a record penalty against Google.[53] In the relevant investigative decision, the Commission stated that Google dominates the App Stores market for general internet search services, licensable mobile operating systems and Android mobile operating systems and that the limitations Google has imposed on Android device manufacturers and mobile network operators by abusing its dominant position are illegal under European Competition Law.

In the decision; it was stated that the behaviours of “mobile phones and tablet manufacturers being required to pre-install the Google Search app and browser app (Chrome)”, “certain large manufacturers given financial payments by Google to offer Google’s engine as a single option” and “manufacturers being prevented to pre-install Google apps from selling even a single smart mobile device running on alternative versions of Android that were not approved by Google” has prevented competition in the market and a Google has been fined €3.4 billion.[54]

Accordingly, the decision requires “Google to end its illegal conduct in an effective manner within 90 days of the decision and to stop/ not re-engage in any of the three types of practices” and “refrain any measure that has the same or an equivalent object or effect as these practices.” Thus, if Google fails to ensure compliance with the Commission decision, it would be liable for non-compliance payments of up to 5% of the average daily worldwide turnover of Alphabet, Google’s parent company.[55]

Finally, in the Google AdSense 2019 Decision regarding the European Commission’s investigation numbered AT. 40411, Google, which was sentenced to 2.42 billion Euros with the Google Shopping 2017 Decision and to 4.3 billion Euros with the Google Android 2018 Decision, was sentenced to 1.49 billion Euros, as this time it misused its dominant position in the search advertising mediation platform.[56]

As stated in the decision, the AdSense application “works as an online search advertising intermediation platform” and Google, which mediates between website owners and advertisers, is “by far the strongest player in online search advertising intermediation”[57] Google negotiates these mediation services “via agreements that were individually negotiated”[58] and being the strongest player on the market was made possible by the terms of the agreement between Google and third-party websites.

Because the provisions of the relevant agreement have been examined by the Commission within the scope of the investigation and as a result of the examination, it has been decided that the provisions are restrictive for competing undertakings. As stated in the decision, since 2006, exclusivity clause has been added to the agreements between Google and third-party website owners, and accordingly, publishers have been banned from placing any search ads on search results pages. Since 2009, Google has brought the “premium placement” clause instead of the exclusivity clause, thereby it prevented competitors from displaying search ads in the most visible and most clicked places on third-party websites.

As of 2009, with the provision added by Google to the contract, “publishers have been required to obtain written approval from Google before making changes in the way competitor ads are displayed.” In this regard, the Commission concluded that the attractiveness of the ads of competing search engines can be controlled by Google.[59]

As a result of the investigation carried out by the Commission, it was decided that Google, which dominates the online search advertising brokerage market and  preventing rivals from competing in the online search advertising intermediation market in line with the aforementioned behaviours, is abusing its dominant position and stated that dominant companies have a special responsibility not to abuse their powerful market position by restricting competition [60] Accordingly, Google has not only been fined but has been decided to stop its illegal behaviour that prevents rival undertakings from entering the market and refrain from exhibiting the same or equivalent effect.[61]

  • EU Competition Law Applications for Digital Platforms

In our article, competition violations arising from the data-driven Market forces and the abuse of this power, depending on the number of users in digital platforms, have been included so far. On the other hand, digital platform market power is further entrenched through vertical integration.[62]

For example, “dominant platforms such as Amazon and Apple have engaged in expanding their businesses vertically into upstream and downstream markets and become competitors to traders or application developers that use their platforms.” and thus they improve their capacity to increase their competitiveness by having the opportunity to collect more data.[63] As a typical example of this structure, Amazon is particularly interesting in terms of E-Commerce platforms and has been the subject of various competition investigations, particularly in European countries.

In 2018, the Federal Cartel Office of Germany and in 2019, the Commission[64] initiated an investigation against Amazon.  With regard to violation of competition, the German Federal Cartel Office, focusing on different points from the Commission, closed abuse proceedings at the same time as the European Commission initiated an investigation, based on the commitments given by Amazon.[65]

While the Commission focuses on Amazon’s behaviour towards third-party retailers and whether Amazon is using vendor data to gain an advantage of its sales, in its investigation, which has not been finalized yet[66], the German Federal Cartel Office is focused on whether Amazon’s business terms and practices for vendors in the German market are abusive.[67]

In the 2019 investigation of the Federal Cartel Office of Germany, Amazon made commitments to change the overall business conditions challenged by the Federal Cartel Office of Germany and make arrangements to eliminate competition concerns about their controversial practices in the market. The arrangements are specifically aimed at making improvements for retailers without adversely affecting customers’ interests in the market. Amazon will set business conditions not only for German marketplace amazon.de but for all European markets (amazon.co.uk, amazon.fr, ama-zon.es, amazon.it)

  1. Turkish Competition Law Decisions in The Digital Sector

When the Turkish Competition Law system is examined, it is seen that digital sector analysis has taken place, especially in parallel with the European commission’s point of view. In the preliminary research and investigations carried out on digital platforms, the dominant position is evaluated in general. Indeed, thanks to the unique dynamics of the digital sector, it is notable that the market is shared by several players and sometimes even has a single player monopoly.

While there are competition investigations and competition violations against digital markets and Google in Turkey, there is no competition law investigation filed or concluded against Facebook yet.

  • Turkish Competition Law Violation Decisions Against Google

The Authority has five preliminary research and two investigative decision regarding Google, which have been concluded since 2015[68]. In addition, there are two new ongoing investigations as of July 2020. The Google Adwords 2019 Investigation[69] is carried out on the application, which claims that it has made it difficult for the undertakings to make their activities difficult by abusing their dominant position with Google’s algorithm searches for general search services and AdWords ads.[70] We expect the Institution to take a similar decision with the Commission, as the related investigation of 2019 shows the Market similarity with the Commission’s above 40411 numbered and 20.03.2019 dated Google AdSense decision[71]. On the other hand, the Google Local Network 2019 Investigation (Google Yerel Ağ 2019 Soruşturması), which was initiated very recently with the Google Adwords 2019 Investigation, is carried out on the application that Google, which dominates the general search services market, is abusing its dominant position by highlighting its local search service to exclude its competitors.[72] While the Board decisions regarding Google are generally in line with the European Commission, it is interesting that the Google Local Network 2019 Investigation is being examined only in Turkey. As part of this investigation, we consider that Turkey can lead the way in the application of Competition Law to the digital sector.

The first investigation decision concluded against Google is the Google Android Decision[73] dated 19.09.2018 and numbered 18-33 / 555-273, and with the relevant investigation decision, Google’s economic integrity, which is stated to be dominant and violated RKHK’s Article 6, an administrative fine of 93.083.422,30 TL was given. A similar decision was made on Google Android mobile devices, which were also investigated by the Commission at the relevant time, with the Commission’s 2018 Android Decision.[74]

On the other hand, the Google Shopping Decision[75] dated 13.02.2020 and numbered 20-10 / 119-69, whose investigation report has not been published as of October 2020, is the second investigation against Google and again is parallel to the Commission’s Google Shopping Decision of 2017[76]. Accordingly, with the Shopping decision of the Board dated 2020, this time an administrative penalty of 98.354.027,39 TL was given to the Google economic integrity, which was decided to dominate the general search services and online shopping comparison services markets.

The general emphasis in the decisions regarding digital platforms such as Facebook and Amazon, which is mentioned above, is the multilateral market structure of the digital sector, the indirect network effect in the sector and the sector being data-based. In addition to these features, the “financial structure” in the digital sector is an important distinguishing element that is very different from traditional markets. As a matter of fact, “as observed on many online platforms, the user/consumer who makes the search in the general search services market does not pay a direct price for the service it receives, such as the Google search engine, and in most cases, the party charged directly or indirectly by the search engine is content providers.” [77]

This is because a large percentage of revenue generated on digital platforms is generated through advertising. As a matter of fact, Google Android Decision, the first investigation carried out by the Competition Authority on Google, found to be dominant, with about 90% of Google’s main revenue source and advertising locations for consumers using Google products again by offering the advertising content obtained through Google services (Adwords, AdSense and AdX) is stated.[78]At this point, it is seen that the effect of platforms that determine market power is traffic flow.

An important issue discussed here is the discussion of whether it is a moral fee for users to save their personal data by the relevant platform, although users they do not pay a monetary price and the impact of personal data on market power in digital markets. Indeed, “another area where Google provides revenue and superiority in terms of advertising services is its mastery of user data” because user-specific data on consumer behaviour and habits are recorded in the database by Google so that advertisers can get better returns through target ads. [79] With the Google Android 2018 Decision, it was decided that the dominant position was abused due to the provisions signed between google economic integration and the producers of the devices that the Google search engine is determined as default search engine and the Google search engine is taken place on the main screen, and Google WebView is only chosen as a tool regarding relevant function. [80] With the relevant decision stipulated in administrative fines, Google has also been placed with additional obligations to terminate the violation and ensure the establishment of effective competition in the market:

“- In its contracts with device manufacturers who want to use a Commercial Android Operating System on their devices produced for sale in Turkey;

  • Removal of contract terms that regulate or directly / indirectly indicate the obligation to install privileged Google search snippet on the home screen as a condition for licensing, thereby securing the right to choose the provider of the search widget that device manufacturers will position on the home screen, from Google or its competitors, and the freedom of device manufacturers to place search particles other than Google alone on the home screen,
  • Removal of the conditions for assigning Google search as a condition for licensing as default in all search access points included in the contracts within the existing design structure, and not to impose new obligations regarding the default setting of Google search in all search points that may arise as a result of design preferences.
  • to remove the terms of the contract, which are provided as a condition for licensing, that regulate the obligation to install the Google WebView component as a default and exclusively in-app internet browser, or directly / indirectly,
  • not to make incentives through financial or other means in a way that would result in the prohibited results with the three obligations listed above.

– Removing the obligations from all existing contracts, especially the Revenue Sharing Agreements signed with the device manufacturers, that Google search cannot be pre-loaded on the devices of competitors and that device manufacturers cannot use products that rival Google search at any of the search points on devices.” [81]

The Board’s second decision to investigate against Google is related to the Google Comparative Shopping Services. The most striking aspect of this investigation is again the data power of Google and the ability to transfer this data between its own applications. In fact, Google, which has a powerful tool, such as a database, also owns the search engine, so it has the opportunity to adjust its search results in favour of its own product, Comparative Shopping Services.

At this point, the Board fined Google 98,354,027.39 ₺ with the Google Shopping Decision[82] numbered 20-10 / 119-69, as Google abused the dominant position and acted against the equal opportunity between users and the following obligations were imposed to end the violation and ensure the establishment of effective competition in the market:

“- To be fulfilled within 3 (three) months of notification of the reasoned decision and to be repented to the Board;

  • Providing conditions where competing shopping comparison services will not be less advantageous than their related services on the general search results page,
  • Remove the click feature of the title of the Shopping Unit in other channels, in accordance with the mobile channel,
  • Reasonably eliminating the uncertainty that this area is an advertisement in the title and labelling of the Shopping Unit,
  • In the searches carried out on Google, terminating to the priority positioning of the Shopping unit, if the brand or site name of its competitors offering shopping comparison service is included

– Submitting reports to the Authority periodically for a period of five years and once a year from the start of the first compliance measure.

At this point, it appears that the Competition Authority is making decisions in accordance with the Commission’s cases in its investigations into Google. On the other hand, in cases where a violation of competition is detected, only administrative fines are not ruled, regulatory behavioural conditions are envisaged in order to end and prevent the relevant uncompetitive behaviour repeating in order for the market to reach a competitive level again.

  • Violation Decisions of Yemek Sepeti and Sahibinden.com (“by the Owner”) in Digital Market

On the application of some undertakings[83]  in the online takeaway service sector, the Competition Authority initiated an investigation on 18.03.2015 regarding the Yemeksepeti, in line with claims that the market was dominated by Yemeksepeti and that it had superiority in terms of its contracts with restaurants, especially compared to its competitors. The subject of the Board’s decision on the 2016 Yemeksepeti Investigation decision dated 09.06.2016 and numbered 16-20 / 347-156[84] is the agreements that the Yemeksepeti has made with restaurants. It has been decided that the Yemeksepeti, which has no competitor in 50 provinces and is close to the monopoly in 11 of the 12 provinces where its competitor is located, is dominant in the “online food order-service platform services” market considering that some platforms had to leave the market or change their business models. The Yemeksepeti which is in the dominant position, makes a contract with the restaurants that want to take part in its platform, which includes the MFC (Most Favored Customer Charter) application. In line with this agreement, restaurants are prevented from serving better / different conditions in rival platforms. In this context, an administrative fine of 427.977.70 TL was given to the Yemeksepeti, which is stated to have exclusionary effects on the market due to the MFC application, on the grounds that it violates Article 6 of RKHK and it was decided to reorganize the contract with the restaurants for the end of the mentioned MFC application.

Another issue that is important to examine in terms of digital sectors is excessive pricing. Excessive pricing behaviour, which is considered as a violation of competition from the perspective of competition law, is a behaviour that is considered exploitative and leads to a direct loss and distribution inefficiency in consumer welfare.[85] In the examination of the Competition Authority regarding the Sahibinden, it is seen that the excessive price application, which is kept in the foreground, cannot be applied under competitive conditions by a dominant undertaking and it is evaluated as the prices that are significantly above the economic value of the product / service it offers.[86]

The Authority has two preliminary research[87] and one investigative[88]  decision regarding Sahibinden, which have been concluded since 2015. While the research in 2015 was carried out on the complaints of the used automotive dealers (auto gallery), the research in 2017 was made as a result of complaints from the real estate sector. In the investigation carried out in line with the complaints from both sectors regarding the “violation of Article 6 of the Law No. 4054 by applying excessive prices in the on-line platform service markets for vehicle and real estate sales / leasing services”, the Board, unlike the majority of the rapporteurs, concluded that Sahibinden was abusing its dominant position through excessive pricing. The majority of rapporteurs were the opinion that Sahibinden.com’s strategic business decisions contributed to reaching its position in the markets, high pricing conduct does not have a direct effect on consumer welfare and that the prices will converge to the levels observed in competitive markets since market has faced new entries from certain strong local and global players, which will increase the competitive structure in the markets in mid-long term. However, it was stated in the decision that the pricing is far from what should have been observed in competitive markets and the market does not have the necessary competitive structure to correct itself in the short and mid-terms.

The decision stated that Sahibinden was the first player to enter the relevant market and that it had created a significant price-setting power over its competitors by providing high traffic flow on the platform thanks to his strategic decisions and significantly increased the price level since 2014. Accordingly, stating that a competition that would bring down the price level did not occur in the period of 2015-2017, and contrary to its defence, the market did not return to its normal course without the intervention of the Authority[89] due to existing entry barriers in the market, an administrative fine of 10.680.425.98 TL was issued against the Sahibinden. However, in the lawsuit filed at the local court on the point of whether excessive price conditions occurred, the case was accepted by the Ankara 6th Administrative Court and the decision[90]  was cancelled with the decision dated 18.12.2019. In the justification of the decision, it was emphasized that the decision of violation was not based on solid grounds, since it was not proved that the effect of company behaviors would be against the consumer in the short, medium and long term that the price margins were excessive in the intervention of excessive pricing behaviors, therefore the decision was unlawful. In our opinion, although the decision of cancellation has been made with a correct assessment in terms of competition law application, it will also be possible to accept that a different excessive price assessment has been made by evaluating the structure of the digital sector and the dominant position here is different from the classical sectors. Accordingly, it would be correct to wait for the final version of the first-instance court decision as a result of appeal investigation.

  1. General Evaluation and Conclusion Regarding Competition Law Practices in Digital Markets

As we have stated above, digital markets are generally dominated by several platform players due to the magnitude of the effect created and the advantages that enter first.[91] This situation raises violations of abuse of dominant position in terms of competition law. These violations are also raised in relation to personal data law. In the application of Competition Law; In particular, the market shares of the platforms and the dominant situation analysis are focused on the multi-pro-market structure, the inter-party indirect network effect, advertising-based revenue-generating, etc. that distinguish the digital sector from other sectors. In fact, the concept that all these elements are gathered around is personal data. Revenue sits in the digital industry through ads, and each player’s ultimate goal is to get more ads to the relevant user and get more clicks.

Giant platforms like Facebook and Google have the opportunity to connect target advertising with the user through a personal database. For example, while Google offers its own comparison shopping service through its search engine, Facebook, which is in a dominant position in the social networking platform, has the power to carry each data liked / shared on the social platform to another platform. At this point, it is the obligation of the competition authorities to encompass digital platforms into a legal limit. Entrepreneurs should not be suppressed enough to make strategic and creative moves on the platform, nor should they be released enough to abuse their dominant position by taking the market forces behind them. At this point, the published Commission reports and decisions will also guide the Competition Authority which is in preparation of creating a sector report.

The digital sector is as vibrant and changeable as it is new and the evaluation of the sector in terms of Competition Law came to the agenda in a very short time. Many competition authorities regarding the sector, where discussions are still ongoing, constitute a jurisprudence by making decisions. And the sector is tried to be brought under control either with reports or with new laws. However, in our opinion, in these sectors where the first-entry advantage is experienced in terms of competition law practice, it was necessary to prevent such structures from merging-acquiring and purchasing new entrants that could compete with them, based on the criterion of “restriction of competition”. However, in the light of existing regulations this structure which cannot be intervened with the “dominant position test” has enabled the formation of the most and super dominant enterprises today. Henceforward, we consider that the efforts of the competent institutions to set these giant forces on some ground, especially with the decision and the “remedies” to the abuse of the dominant position should be appreciated.

The Competition Authority also follows the developments in the world and interprets the unique dynamics of the digital sector in its decisions in a similar way to the European Commission’s decisions. In this regard, we believe that the decisions taken by the Authority such as Google and Sahibinden.com will guide the application of Turkish Competition Law. In addition, within the scope of the sector research carried out by the Turkish Competition Authority for the digital sector, we hope to cooperate with the Information Technologies and Communication Authority, which is the regulatory authority of the digital sector, to bring policy suggestions to protect and support new players entering the market in all areas. In addition, we think that the application of “remedies” introduced under the competition law should be followed with persistence.

As a result, although it is late, the digital sector, which is a new trading model, can be brought to a more competitive level by taking into account the unique characteristics of the digital sector with the correct use of competition law applications in the world and Turkey and the principles of established Competition Law.

 

BIBLIOGRAPHY

Academic Studies:

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  1. CNBC, More than 75 percent of US online consumers shop on Amazon most of the time, 2017
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  4. European Commission, Antitrust: Commission opens investigation into possible anticompetitive conduct of Amazon, Case AT.40462, 2019
  5. European Commision, Antitrust: Commission fines Google €1.49 billion for abusive practices in online advertising, 2019
  6. GERADIN D, European Commission issues terms of reference for study on “platforms with significant network effects acting as gatekeepers, 2020
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  16. Statista, Global market share of search engines 2010-2020, 2020
  17. MarketingLand, Amazon owns more than 90% market share across 5 different product categories, 2018

Decision:

  1. German Federal Court, Decision No. KVR 69/19 of 23.06.2020
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  6. European Commission, Decision of 27 June 2017 in Case. AT.39740 Google Search (Shopping)
  7. European Commission, Decision of 18 July 2018 in Case. AT.40099 Google Android
  8. COMPETITION BOARD, Decision of Sahibinde.com dated 01.10.2018 and numbered 18-36 / 584-285
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  13. COMPETITION BOARD, Google Preliminary Research Decision dated 07.11.2019 and numbered 19-38 / 575-243
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  16. COMPETITION BOARD, Google Shopping Decision No. 20-10 / 119-69 dated 13.02.2020
  17. COMPETITION BOARD, Decision of Yemeksepeti dated 09.06.2016 and numbered 16-20 / 347-156
  18. COMPETITION BOARD, Sahibinden.com Preliminary Investigation Decision dated 19.02.2015 and numbered 15-08 / 109-45
  19. COMPETITION BOARD, Sahibinden.com Preliminary Investigation Decision dated 04.05.2017 and numbered 17-15 / 175-87
  20. OLG Düsseldorf, Case VI-Kart 1/19 (V), 2019
  21. US District Court for The District Of Columbia, Stipulated Order for Civil Penalty, Monetary Judgement, and Injunctive Relief, United States v. Facebook No. 19-cv-2184

Conference / Symposium / Survey:

  1. Economic Commission for Latin America and the Caribbean (ECLAC), Data, algorithms and policies: redefning the digital World (LC/CMSI.6/4), Santiago, 2018
  2. Istanbul Bar Association Consumer Rights and Competition Law Center, Competition Law Practices in Electronic Commerce Symposium Session 1: E-Commerce Platforms (2019)
  3. UNCTAD, Competition issues in the digital economy Note by the UNCTAD secretariat, United Nations Conference on Trade and Development, Eighteenth session Geneva, 2019

Other:

  1. 15 U.S.C. § 2.,
  2. European Public Consultation Document (2016)
  3. Facebook Privacy Policy 2004

[1]Aysel Alp, ‘Rekabet Kurumu Dijital Rekabetin Kurallarını Yazıyor’ (Hürriyet, 7 Mart 2020) <https://www.hurriyet.com.tr/ekonomi/rekabet-kurumu-dijital-rekabetin-kurallarini-yaziyor-41463138 > accessed October 5, 2020

[2]Competition Authority, ‘The Competition Board Takes a Focus on the Digital Economy’ (Competition Authority, 8 May 2020) <https://www.rekabet.gov.tr/tr/Guncel/rekabet-kurulu-dijital-ekonomiyi-mercek–61aedbe40a91ea11811a00505694b4c6 > accessed October 5, 2020

[3] John M. Newman, ‘Antitrust in Digital Markets’ (2019) 72 (5) Vanderbilt Law Review 1497, s. 1502 <https://scholarship.law.vanderbilt.edu/vlr/vol72/iss5/2/ > accessed October 5, 2020

[4] Istanbul Bar Association, ‘Competition Law Practices Symposium in Electronic Commerce’ (İstanbul Istanbul Bar Association, January 28, 2020) p.5 para.2 <https://www.istanbulbarosu.org.tr/YayinDetay.aspx?ID=559&desc=ELEKTRON%C4%B0K-T%C4%B0CARETTE-REKABET-HUKUKU-UYGULAMALARI-SEMPOZYUMU > accessed October 5, 2020

[5] Gönenç Gürkaynak, ‘Competition and Antitrust in The Digital Age’ (International Law Office, 27 April 2017) p.1 para.5 <https://www.gurkaynak.av.tr/docs/c10ed-competition-and-antitrust-in-the-digital-age.pdf > accessed October 5, 2020

[6] Javier López González & Marie-Agnes Jouanjean, ‘Digital Trade: Developing a Framework for Analysis’ (2017) 205

OECD Trade Policy Papers <https://www.oecd-ilibrary.org/docserver/524c8c83-en.pdf?expires=1592142076&id=id&accname=guest&checksum=635E6E5C814B29E4F7A28CE6DDADF92C > accessed October 5, 2020

[7] Competition Authority, D-Market Decision No. 5-40 / 662-231 dated 10.11.2015, <https://www.rekabet.gov.tr/Karar?kararId=010fa628-4d37-478d-8e54-47309a72b588 > access date 5 October 2020

[8]European Public Consultation Document’ (European Commission, 2016) <https://ec.europa.eu/information_society/newsroom/image/document/2016-7/efads_13917.pdf > accessed October 5, 2020

[9] Economic Commission for Latin America and the Caribbean (ECLAC), ‘Data, Algorithms and Policies: Redefining The Digital World’ (ECLAC, 2018) <https://repositorio.cepal.org/bitstream/handle/11362/43515/7/S1800052_en.pdf  > accessed October 5, 2020

[10] Note by the UNCTAD Secretariat, ‘Competition Issues in The Digital Economy’, (UNCTAD, 2019) p.4, para.5, <https://unctad.org/meetings/en/SessionalDocuments/ciclpd54_en.pdf > accessed October 5, 2020

[11] Istanbul Bar Association (n 5) p. 9 para.3

[12] Competition Authority, Sahibinden.com Decision dated 01.10.2018 and numbered 18-36 / 584-285, p.9 para.38, <https://www.rekabet.gov.tr/Karar?kararId=8a58df07-f31b-457e-b936-9fa3afd5fdbf > accessed October 5, 2020

[13] UNCTAD (n 11) p. 3 para.3

[14] Courtney Reagan & Jodi Gralnick, ‘More than 75 percent of US online consumers shop on Amazon most of the time’ (CNBC, 2017) <https://www.cnbc.com/2017/12/19/more-than-75-percent-of-us-online-consumers-shop-on-amazon-most-of-the-time.html > accessed October 5, 2020

[15] Amy Gesenhues, ‘Amazon owns more than 90% market share across 5 different product categories’, (MarketingLand, 2018) <https://marketingland.com/amazon-owns-more-than-90-market-share-across-5-different-product-categories-report-241135 > accessed October 5, 2020; ‘Browser Market Share Worldwide’ (Statcounter, 2020) <http://gs.statcounter.com/social-media-stats  5 October 2020; ‘Global market share of search engines 2010-2020’ (Statisca, 2020) <https://www.statista.com/statistics/216573/worldwide-market-share-of-search-engines/> accessed October 5, 2020

[16] Andrew Perrin & Monica Anderson ‘Share of U.S. adults using social media, including Facebook, is mostly unchanged since 2018’ (Pew Research Center, 2019), < https://www.pewresearch.org/fact-tank/2019/04/10/share-of-u-s-adults-using-social-media-including-facebook-is-mostly-unchanged-since-2018/ > accessed October 5, 2020

[17] John M. Newman, ‘The Myth of Free’ (2018) 86 (513) The George Washington Law Review <https://www.gwlr.org/wp-content/uploads/2018/06/86-Geo.-Wash.-L.-Rev.-513.pdf > accessed October 5, 2020

[18] Matthew Johnston, ‘How Facebook Makes Money’ (Investopedia, 2020) <https://www.investopedia.com/ask/answers/120114/how-does-facebook-fb-make-money.asp > accessed October 5, 2020

[19] 15 U.S.C. § 2. < https://www.law.cornell.edu/uscode/text/15/2 > accessed October 5, 2020

[20] US District Court for The District of Columbia, ‘Stipulated Order for Civil Penalty, Monetary Judgement, and Injunctive Relief, United States v. Facebook’, No. 19-cv-2184, <https://www.ftc.gov/system/files/documents/cases/182_3109_facebook_order_filed_7-24-19.pdf > accessed October 5, 2020

[21] Dina Srinivasan, ‘The Antitrust Case Against Facebook: A Monopolist’s Journey Towards Pervasive Surveillance in Spite of Consumers’ Preference for Privacy’ (2019) 16 (1) Berkeley Business Law Journal, 39, s. 44 p.2 <https://lawcat.berkeley.edu/record/1128876 > accessed October 5, 2020

[22] See, Facebook Privacy Policy 2004, < http://www.thefacebook.com/policy.php >

[ https://web.archive.org/web/20050107221705/http://www.thefacebook.com/policy.php ] accessed October 5, 2020

[23] Srinivasan (n 22) p. 48 para.3

[24] SRİNİVASAN, p. 44 para.2

[25] UN Conference, p.6 para.15

[26] Bundeskartellamt, Case Report of B6-22/16, Facebook, Exploitative business terms pursuant to Section 19(1) GWB for inadequate data processing’ (2019) <https://www.bundeskartellamt.de/SharedDocs/Entscheidung/EN/Fallberichte/Missbrauchsaufsicht/2019/B6-22-16.pdf?__blob=publicationFile&v=3 > accessed October 5, 2020

[27] ibid p. 4 para.4

[28] ibid p. 1 para.2

[29] ibid p. 8 para.4

[30] ibid, p.5,6,7

[31] ibid. p.4, para.4

[32] ibid. p.7, para.2

[33] ibid. p.7, para.2

[34] ibid p. 7 para.4

[35] ibid p. 12 para.2

[36]Bundeskartellamt, Case Decision of B6-22/16 ‘Veröffentlichte Entscheidung zum Facebook Verfahren’, (2019) 2-7, <https://www.bundeskartellamt.de/SharedDocs/Entscheidung/DE/Entscheidungen/Missbrauchsaufsicht/2019/B6-22-16.pdf?__blob=publicationFile&v=8 > accessed October 5, 2020

[37] OLG Düsseldorf, Interim Decision of Case VI-Kart 1/19 (V), 2019 < https://perma.cc/WFJ2-JWEM > accessed October 5, 2020

[38] German Federal Court, Decision No. KVR 69/19 of 23.06.2020 <https://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=bedd4af3c9d89a4dcaa64fc85d244e9e&nr=109506&pos=0&anz=107 >

[39] ibid para. 14

[40] Rupprecht Podszun, ‘Facebook Case: The Reasoning’ (D’Kart, 28 August 2020) < https://www.d-kart.de/en/blog/2020/08/28/facebook-case-the-reasoning/ > accessed October 5, 2020

[41] German Federal Court, Decision No. KVR 69/19 of 23.06.2020 (no 39) para. 64

[42] Damien Geradin, ‘European Commission issues terms of reference for study on “platforms with significant network effects acting as gatekeepers’ (The Platform Law Blog, 2020) < https://theplatformlaw.blog/2020/05/11/european-commission-issues-terms-of-reference-for-study-on-platforms-with-significant-network-effects-acting-as-gatekeepers/ > accessed October 5, 2020

[43] Richard Schmalensee & David S. Evans, ‘The Industrial Organization of Markets with Two-Sided Platforms’ (2007) 3 (1) Competition Policy International 150, s. 151 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=987341 > accessed October 5, 2020

[44] Geradin (n 43) p. 2

[45] Cédric Argenton & Jens Prüfer, ‘Search Engine Competition with Network Externalities’, (2012) 8 (1) Journal of Competition Law & Economics, s. 73 < https://pure.uvt.nl/ws/portalfiles/portal/1373523/search_engines.pdf > accessed October 5, 2020

[46] UNCTAD (n11) p.4 para.6

[47] UNCTAD (n11) p.4

[48] MicroAcquire, ‘Google Acquisitions’, (MicroAcquire, 2020) < https://acquiredby.co/google-acquisitions/ > accessed October 5, 2020

[49] Google Shopping Investigation No. 339740, Google Android Investigation No. 40099, Google AdSense Investigation No. 40411

[50] European Commission, Decision of 27 June 2017 in Case. AT.39740 Google Search (Shopping), <https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52018XC0112(01)&from=EN >

[51]European Commission, “Antitrust: Commission fines Google €2.42 billion for abusing dominance as search engine by giving illegal advantage to own comparison-shopping service”, (European Commission, 2017) <https://ec.europa.eu/commission/presscorner/detail/en/IP_17_1784 > accessed October 5, 2020

[52] ibid s.13, para.29

[53] European Commission, ‘Summary of Commission Decision of 18 July 2018 relating to a proceeding under Article 102 of the Treaty on the Functioning of the European Union and Article 54 of the EEA Agreement’ (2019) C 402/19 Official Journal of the European Union <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52019XC1128(02)&from=EN > accessed October 5, 2020

[54] European Commission, ‘Antitrust: Commission fines Google €4.34 billion for illegal practices regarding Android

mobile devices to strengthen dominance of Google’s search engine’ (European Commission, 2018) <https://ec.europa.eu/commission/presscorner/detail/en/IP_18_4581 > accessed October 5, 2020

[55] ibid p. 4 para.31

[56] European Commission, ‘Antitrust: Commission fines Google €1.49 billion for abusive practices in online advertising’

(European Commission, 2019) < https://ec.europa.eu/commission/presscorner/detail/en/IP_19_1770 > accessed October 5, 2020

[57] ibid p. 1 para.3-4

[58] ibid p. 1 para.6

[59] ibid p. 1 para.6-7-8

[60] ibid p. 2 para.3-5

[61] ibid p. 2 para.9

[62] UNCTAD (n11) p.4 p.18

[63] UNCTAD (n11) p. 4

[64] European Commission, ‘Antitrust: Commission opens investigation into possible anti-competitive conduct of

Amazon’ (European Commission, 2019) < https://ec.europa.eu/commission/presscorner/detail/en/IP_19_4291  > accessed October 5, 2020

[65] Bundeskartellamt, Case Report of 17 July 2019, B2-88/18,

< https://www.bundeskartellamt.de/SharedDocs/Entscheidung/EN/Fallberichte/Missbrauchsaufsicht/2019/B2-88-18.pdf?__blob=publicationFile&v=5  > accessed October 5, 2020

[66] German Federal Ministry for Economic Affairs and Energy, Commission of ‘Competition Law 4.0’, ‘A new

competition framework for the digital economy’, (2019) p.48 para.4,

< https://www.bmwi.de/Redaktion/EN/Publikationen/Wirtschaft/a-new-competition-framework-for-the-digitaleconomy.pdf?__blob=publicationFile&v=3 > accessed October 5, 2020

[67] Bundeskartellamt (n 66) p. 1 para.2

[68] Competition Authority, Google Preliminary Research Decision dated 28.12.2015 and numbered 15-46 / 766-281,

<https://www.rekabet.gov.tr/Karar?kararId=3dcd073d-4aeb-40da-b659-472b7aea8a12 > accessed October 5, 2020) ;

Competition Authority, Google Preliminary Research Decision dated 18.05.2016 and numbered 16-17 / 286-129,

<https://www.rekabet.gov.tr/Karar?kararId=45631534-8820-4695-a7a7-e6b5e6e22edf  > accessed October 5, 2020;

Competition Authority, Google Preliminary Research Decision dated 16.11.2016 and numbered 16-39 / 638-284, <https://www.rekabet.gov.tr/Karar?kararId=be64f2cb-4f57-4004-be0d-354399eee0cb > accessed October 5, 2020; Competition Authority, Google Preliminary Research Decision dated 23.03.2017 and numbered 17-11 / 127-56, <https://www.rekabet.gov.tr/Karar?kararId=0c708495-0ddc-40e6-9ede-b79993035370 >  accessed October 5, 2020;

Competition Authority, Google Preliminary Research Decision dated 07.11.2019 and numbered 19-38 / 575-243, <https://www.rekabet.gov.tr/Karar?kararId=e2324c0a-0c68-4f6b-a024-1ca83990a174 > accessed October 5, 2020

[69] Competition Authority (2019), “Investigation Opened About Google Reklamcılık ve Pazarlama Ltd. Şti., Google International LLC, Google LLC, Google Ireland Limited ve Alphabet Inc.”, https://www.rekabet.gov.tr/tr/Guncel/google-reklamcilik-ve-pazarlama-ltd-sti–2c7aacc37a12e91180ec00505694b4c6  accessed October 5, 2020

[70] Competition Authority (2020), “The verbal defense meeting of the investigation against Google Reklamcılık ve Pazarlama Ltd. Şti, Google International LLC, Google LLC, Google Ireland Limited ve Alphabet Inc.  will be held on 1 July 2020.” <https://www.rekabet.gov.tr/tr/Guncel/google-reklamcilik-ve-pazarlama-ltd-sti–d34f0da1189cea11811a00505694b4c6 accessed October 5, 2020

[71] See. no 53

[72] Competition Authority, ‘Investigation Opened About Google Reklamcılık ve Pazarlama Ltd. Şti., Google International LLC, Google LLC, Google Ireland Limited ve Alphabet Inc.’ (Competition Authority, 2019) <https://www.rekabet.gov.tr/tr/Guncel/google-reklamcilik-ve-pazarlama-ltd-sti–7eb96e0acb44e91180f200505694b4c6 > accessed October 5, 2020

[73]Competition Authority, Google Android Decision dated 19.09.2018 and numbered 18-33 / 555-273, <https://www.rekabet.gov.tr/Karar?kararId=7d9ba7e3-2b8f-4438-87a5-26609eab5443 > accessed October 5, 2020

[74] See no 57

[75]Competition Authority, Google Shopping Decision dated 13.02.2020 and numbered 20-10 / 119-69, <https://www.rekabet.gov.tr/Dosya/geneldosya/google-nihai-karar-pdf > accessed October 5, 2020

[76] See. no 51

[77] Competition Authority, Google Preliminary Investigation Decision dated 07.11.2019 and numbered 19-38 / 575-243 (no 69) p.7 para.11 64

[78] Competition Authority Google Android Decision (no 74) s.9 p.19

[79] ibid p. 16 para.26, p.67 para.276-277

[80] ibid p. 16 para.515-2

[81] ibid p. 117 para.515-5

[82] Competition Authority Google Shopping Decision (no 76)

[83] Bolbol Gıda ve İnternet Hizmetleri A.Ş., Grand Fast-Food-Hakan İmay and the Applicants with Confidentiality Requests

[84] Competition Authority, Decision of Yemek Sepeti dated 09.06.2016 and numbered 16-20 / 347-156 <https://www.rekabet.gov.tr/Karar?kararId=0bd0157a-2b4d-43ce-85a3-2af821bb387b > accessed October 5, 2020

[85] Competition Authority Sahibinden.com Decision (n 13) p. 11 para.50

[86] Competition Authority Sahibinden.com Decision (n 13) p. 13 para.62

[87] Competition Authority, Sahininden.com Preliminary Research Decision dated 19.02.2015 and numbered 15-08 / 109-45, < https://www.rekabet.gov.tr/Karar?kararId=4e2d662b-4a9b-4366-83f2-0985000f7117 > accessed October 5, 2020;

Competition Authority, Sahininden.com Preliminary Research Decision dated 04.05.2017 and numbered 17-15 / 175-87, < https://www.rekabet.gov.tr/Karar?kararId=fc0efdce-7d6a-4656-a1b0-0d6c492548de > accessed October 5, 2020

[88] Competition Authority Sahibinden.com Decision (n 13)

[89] ibid p. 43 para.212

[90] Ankara 6th Administrative Court, 2019/946 E. 2019/2625 K., 18/12/2019

[91] Competition Authority Yemeksepeti Decision (no 81), Competition Authority Owner Decision (no 13)